Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, November 9, 2005

Balkin on Abortion: A Response to Rob

Rob asks -- if I understand correctly -- whether a Catholic who believes that the Republican platform is, all things considered, better -- with "better" being judged in terms of accord with Catholic Social Teaching -- than the Democratic Platform, may favor the nomination of a justice who will limit Roe over a justice who would overturn Roe, because nominating the latter would (on the Jack Balkin theory) result in the election of more Democrats.

My initial take is -- assuming for now that, all things considered, the Republican program is better (in CST terms) than the Democratic program -- to say "yes," assuming also that the Democratic program includes support for Roe-maximizing judges, as well as public funding for abortion.  To support -- as an interim strategy -- the nomination of a Roe-limiting, rather than Roe-overruling, justice is not (it seems to me) to cooperate culpably with the evil of abortion. 

Now, I anticipate this reaction to my (admittedly tentative) "take":  "Aha!  Then why can't a Catholic support a Democratic candidate who will pursue non-regulatory, non-judicial policies that result in fewer abortions, but who will not push to ban abortions, and who will not nominate Roe- limiting judges, if that Catholic believes that, on balance, the Democratic platform is better than the Republican platform?"  To which I would probably respond, "I think she can!"  (It's like the story about the guy who was asked if he believed in infant baptism . . . "Of course!  I've seen it done!"). 

That said, I would probably contend -- with respect and charity, I hope -- that her belief (about the platforms' merits) was mistaken, and I might also suggest that a candidate whose campaign strategy (and campaign-funding strategy) was built on a full-throated support of an absolutist version of the abortion-rights position, and on a commitment to nominate Roe-maximizing judges (who would, of course, vote in ways that would make it impossible even to reasonably regulate abortion), was not likely, really, to do much to reduce abortions.

But, I could be wrong.  What do others think?

https://mirrorofjustice.blogs.com/mirrorofjustice/2005/11/balkin_on_abort.html

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